In what will be the first of many legal and regulatory challenges to the Trump administration’s scuttling of
an Obama-era effort to impose federal zoning on millions of acres of private land, a federal court has
tossed out Colorado’s request that the Environmental Protection Agency (EPA) and Army Corps of
Engineers (Corps) be enjoined from implementing the Trump rule pending a determination of the merits
of the case.
In its March 2 ruling in Colorado v. EPA, et al, the U.S. District Court of Appeals for the Tenth Circuit
overturned a lower court decision that had enjoined EPA and the Corps from carrying out the Trump
rule.
At issue is nearly five-decade-old confusion over what constitutes “waters of the United States” (WOTUS)
under the 1972 Clean Water Act (CWA). The CWA grants EPA and the Corps regulatory jurisdiction over
discharges into “navigable waters of the United States” but provides no real definition of its terms. Two
Supreme Court rulings and other legal challenges failed to clean up the mess.
Trump reverses Obama WOTUS rule
In 2015, the Obama administration “clarified’ the legal confusion by implementing a rule granting EPA
and the Corps sweeping powers to regulate activities on private land, including routine farming and
ranching operations. Two federal courts rejected key provisions of the Obama WOTUS rule. And in April
2020, the Trump EPA and Corps set aside much of the Obama rule and promulgated their own Navigable
Waters Protection Rule (NWPR). NWRP was an effort to reinsert the word “navigable” into the phrase
“waters of the United States,” so the feds wouldn’t be able to interfere with commercial activities on
private land that do not impinge on rivers, streams, bays, and other such bodies of water.
Had the Obama WOTUS rule, which expanded federal regulatory jurisdiction to such things as drainage
ditches and stock ponds, stayed in place, obtaining federal permits would have become a nightmare.
Landowners and small businesses would have faced the constant threat of lawsuits by environmental
groups alleging harm to bodies of water by almost any activity carried out on rural property.
Colorado, now politically dominated by urban interests, challenged NWPR, arguing that it didn’t provide
adequate protection to U.S. waters, and a district court agreed, issuing an order staying the effective
date of the NWPR and enjoining EPA and the Corps to continuing to administer the CWA under the then-
current regulations.
That decision has now been tossed out.
“The question before us is straightforward: Did the district court abuse its discretion when it granted
Colorado injunctive relief? The answer is yes,” the appeals court ruled. “Colorado asked for immediate
relief but hasn’t shown that it will suffer irreparable injury absent a preliminary injunction.”
Though narrowly focused, the ruling represents a setback for those hoping for a quick legal killing of the
Trump rule. The Biden administration, filled to the gills with environmental activists, will no doubt target
the Trump rule for extinction. As the 10th Circuit Court’s decision shows, however, the federal judiciary,
now stocked with over 230 Trump-appointed judges and three Supreme Court justices, will be less
friendly to an overreaching administrative regulatory state.
Siding against Colorado in its failed lawsuit were Chantell and Michael Sackett, a couple who were kept
from building their lakefront dream home in northern Idaho by the Obama EPA. Their property
contained no “waters of the United States,” navigable or otherwise. Thanks to the Pacific Legal
Foundation, the Sacketts won a Supreme Court case that allowed them to challenge EPA’s action.
Joining the Sacketts in opposing Colorado’s challenge were such groups as the American Farm Bureau
Federation, American Road and Transportation Builders Association, National Alliance of Forest Owners,
National Cattlemen’s Beef Association, and the U.S. Poultry and Egg Association.

Author

  • Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.